The Author's Guild has suffered another major setback in its fight to stop Google's ambitious book-scanning project. The Guild lost a key ally when Google settled with a coalition of major publishers last week. Now a judge has ruled that the libraries who have provided Google with their books to scan are protected by copyright's fair use doctrine. While the decision doesn't guarantee that Google will win—that's still to be decided in a separate lawsuit—the reasoning of this week's decision bodes well for Google's case.

Most of the books Google scans for its book program come from libraries. After Google scans each book, it provides a digital image and a text version of the book to the library that owns the original. The libraries then contribute the digital files to a repository called the Hathitrust Digital Library, which uses them for three purposes: preservation, a full-text search engine, and electronic access for disabled patrons who cannot read the print copies of the books.

There are four factors the courts consider in fair use cases. Judge Harold Baer sided squarely with the libraries on all four factors.

Probably the most important factor is the first factor: the "purpose and character" of the use. The courts have held that "transformative" uses are generally fair. For example, it's fair use for a search engine to display thumbnails of copyrighted images in search results. Judge Baer ruled that the libraries' intended uses for its digital copies are similarly transformative.

"The use to which the works in the HDL are put is transformative because the copies serve an entirely different purpose than the original works: the purpose is superior search capabilities rather than actual access to copyrighted material," wrote Judge Baer. "The search capabilities of the HDL have already given rise to new methods of academic inquiry such as text mining." Similarly, Judge Baer noted, the scanning program allows blind readers to read the books, something they can't do with the original.

Also key is the fourth factor: the impact on the market for the works. While a book search engine obviously doesn't undermine the market for paper books, the authors had argued that a finding of fair use would hamper their ability to earn revenue by selling the right to scan their books. But Judge Baer rejected this argument as fundamentally circular. He quoted a previous court decision that made the point: "Were a court automatically to conclude in every case that potential licensing revenues were impermissibly impaired simply because the secondary user did not pay a fee for the right to engage in the use, the fourth factor would always favor the copyright owner."

The libraries' fair use argument is somewhat stronger than Google's because they are non-profit organizations with fundamentally educational missions. But significantly, Judge Baer did not rely heavily on this fact in siding with the libraries. Instead, he focused on the transformative nature of the libraries' use. And since Google is making virtually the same use of its own scanned copies of the books, it's a safe bet that there are some happy lawyers in Mountain View this evening.

The copyright scholar (and sometime Ars contributor) James Grimmelmann called the ruling a "near-complete victory" for the libraries. Indeed, he said, the decision "makes the case seem so lopsided that it makes the appeal into an uphill battle. Perhaps together with the AAP [American Association of Publishers] settlement, this is a moment for a reevaluation of the Authors Guild’s suit against Google. My estimate of the likelihood of settlement just went up substantially."

Having skimmed the decision, I thought it right to put forth (My, it's obvious that I just finished reading a legal doc, isn't it?) the decisions with regard to the other two factors for fair use:2. Nature of works: Not valid because of the overwhelming transformative nature: "Because the use is transformative, intended to facilitate key-word searches oraccess for print-disabled individuals, the second factor is not dispositive."3. Amount of work: The use of the entire work is necessary to achieve the otherwise allowable aims: The question is whether “no morewas taken than necessary.” Id. at 587. Sometimes it is necessary to copy entire works.

I thought this point is telling too:The totality of the fair-use factors suggest that copyright law’s “goal of promoting the Progress of Science . . . would be better served by allowing the use than by preventing it.” BillGraham, 448 F.3d at 608

I am not a member of the Author's Guild, but I definitely am an author (two novels copyrighted at the US Copyright Office, and three novels for sale on Amazon).

Having read thus far, you probably expect me to moan and groan about "dem dirty pirates." Nope, I applaud this decision.

First of all, what Google Books is doing SELLS BOOKS. I've already bought one book that I otherwise would never have heard of, because I typed in a search phrase, and Google Books informed me that the search-phrase was matched somewhere within the text of that book. The more books that Google has scanned, the more searchers will use Google Books' search function, and the more books will get sold. (Including mine, eventually.)

Eric Flint, author of _Mutter Of Demons_, _1632_ and its sequels, and other novels, has written a whole series of "the sky is NOT falling" essays about so-called "piracy." His premise is simple: Until you have the sales of Grisham, Rowling, or King, your worst problem as an author is never getting stolen from, it's getting potential reads to hear about your book and read a few chapters.

(By the way, Eric Flint puts his money where his mouth is. If you go to Baen.com's eBooks tab, you'll discover that _1632_ and _1633_ are available for download, FREE and DRM-free.)

Leaving Eric Flint's thoughts to return to my own, I see a seething rage building among the people buying creative content. Right now that rage can't accomplish anything, because right now the world's legislators and decision-makers listen only to Big Content. But the tide WILL turn, the pendulum WILL swing[*], and then we content creators will pay for our collective arrogance of today. OTOH, humility on our part now will mean less wailing and gnashing of teeth by us content creators, twenty years from now.

His premise is simple: Until you have the sales of Grisham, Rowling, or King, your worst problem as an author is never getting stolen from, it's getting potential reads to hear about your book and read a few chapters.

If I follow correctly you're saying that for relative unknown authors the worst thing is not getting "pirated" (hate that term) because that's introducing new readers (and potential purchasers) to your works? I'd agree with that in part. Only in part because in order for that reader to become a purchaser of your books you'd have to get past the psychological demotivation to purchase something you already have access to. The purchased version generally has to provide additional benefits for the "pirate" to be willing to transform the copy they have already obtained into a legal, paid copy. I know of no research to back this up, but I would be willing to bet that a system as simple as a tip or donation to the author might just provide enough of a different perspective on what they're doing (i.e. instead of "paying" for something they already have access to they're "supporting" the author) to get some of them to do it.

The really sad thing is that the authors who "suffer" the most from "piracy" wouldn't even notice the difference in their checks if all the "pirates" were purchasers. Not that I'm trying to justify the act; it's just that the loudest voices against "piracy" seem to be the people who are hurt the least by it.

For some reason I'm reminded of all the sites that have searchable song lyric databases that make ad revenue off of them.

Song lyrics are not a substitute for the music. Even showing them in their entirety would not undermined record sales (this is why RIAA doesn't care about those sites). However, showing books in their entirety (or a substantial part) WOULD undermined the book market. Sure, both are copyright infringement, but only the latter case actually affects the artist or anyone else. You may not like the idea of those sites making money off of (or with, actually) other's work without permission, but hey they are providing a service. And as long as they are not hurting the artist, that's a good thing, right?

For some reason I'm reminded of all the sites that have searchable song lyric databases that make ad revenue off of them.

Song lyrics are not a substitute for the music. Even showing them in their entirety would not undermined record sales (this is why RIAA doesn't care about those sites). However, showing books in their entirety (or a substantial part) WOULD undermined the book market. Sure, both are copyright infringement, but only the latter case actually affects the artist or anyone else. You may not like the idea of those sites making money off of (or with, actually) other's work without permission, but hey they are providing a service. And as long as they are not hurting the artist, that's a good thing, right?

Libraries don't seem to have killed off the book market. Last I checked, books are available in their entirety free for citizens to read there or check out and take home.

Also key is the fourth factor: the impact on the market for the works. While a book search engine obviously doesn't undermine the market for paper books, the authors had argued that a finding of fair use would hamper their ability to earn revenue by selling the right to scan their books. But Judge Baer rejected this argument as fundamentally circular. He quoted a previous court decision that made the point: "Were a court automatically to conclude in every case that potential licensing revenues were impermissibly impaired simply because the secondary user did not pay a fee for the right to engage in the use, the fourth factor would always favor the copyright owner."

By that logic, piracy could also be considered fair use?

If the person could realistically argue that they would not have purchased something, then the rightsholder cannot claim to have been deprived of anything. For example, Photoshop costs thousands of dollars, so I bought Pixelmator instead for $80 and I'm really happy with that choice - even though I do miss some features from back when I was using photoshop (an old version that no-longer runs on my mac).

Could someone who pirates photoshop claim they never would have purchased it, and actually have a leg to stand on?

His premise is simple: Until you have the sales of Grisham, Rowling, or King, your worst problem as an author is never getting stolen from, it's getting potential reads to hear about your book and read a few chapters.

If I follow correctly you're saying that for relative unknown authors the worst thing is not getting "pirated" (hate that term) because that's introducing new readers (and potential purchasers) to your works? I'd agree with that in part. Only in part because in order for that reader to become a purchaser of your books you'd have to get past the psychological demotivation to purchase something you already have access to. The purchased version generally has to provide additional benefits for the "pirate" to be willing to transform the copy they have already obtained into a legal, paid copy. I know of no research to back this up, but I would be willing to bet that a system as simple as a tip or donation to the author might just provide enough of a different perspective on what they're doing (i.e. instead of "paying" for something they already have access to they're "supporting" the author) to get some of them to do it.

As a software developer, I understand exactly what he's talking about. Generally there are three possibilities:

Of those three choices the first two are almost infinitely better than the third choice. Obviously it's great when someone sends me money, but I'm also OK with them pirating it because that has several possible sources of revenue:

* they might tell someone else they like it, and that person buys it * they might love it so much they buy it to support the author * they might want it in another format (ebook, audio book, hardcover, etc) and may buy that * they might buy some future book that I write (or they might pirate it, which is almost as good as buying it)

Sure, none of those choices are quite as good as actually buying the book. But they are infinitely better than not buying it and not pirating it. At least I've got some hope of getting revenue out of a pirate.

krimhorn wrote:

The really sad thing is that the authors who "suffer" the most from "piracy" wouldn't even notice the difference in their checks if all the "pirates" were purchasers. Not that I'm trying to justify the act; it's just that the loudest voices against "piracy" seem to be the people who are hurt the least by it.

Generally the authors do not suffer directly from piracy. It is the publishers who suffer from piracy. They are investing large sums of money in a wide variety of books, most of which end up being money thrown down the toilet.

For book/music/movie publishers, a customer who doesn't buy a book is likely to spend money on some other book, and chances are they make money off that book too.

And what's bad for the publishers is (in the long run) bad for authors, because it means less authors are able to get a nice fat cheque to cover their living expenses while they write a book.

His premise is simple: Until you have the sales of Grisham, Rowling, or King, your worst problem as an author is never getting stolen from, it's getting potential reads to hear about your book and read a few chapters.

If I follow correctly you're saying that for relative unknown authors the worst thing is not getting "pirated" (hate that term) because that's introducing new readers (and potential purchasers) to your works? I'd agree with that in part. Only in part because in order for that reader to become a purchaser of your books you'd have to get past the psychological demotivation to purchase something you already have access to. The purchased version generally has to provide additional benefits for the "pirate" to be willing to transform the copy they have already obtained into a legal, paid copy. I know of no research to back this up, but I would be willing to bet that a system as simple as a tip or donation to the author might just provide enough of a different perspective on what they're doing (i.e. instead of "paying" for something they already have access to they're "supporting" the author) to get some of them to do it.

As a software developer, I understand exactly what he's talking about. Generally there are three possibilities:

Of those three choices the first two are almost infinitely better than the third choice. Obviously it's great when someone sends me money, but I'm also OK with them pirating it because that has several possible sources of revenue:

* they might tell someone else they like it, and that person buys it * they might love it so much they buy it to support the author * they might want it in another format (ebook, audio book, hardcover, etc) and may buy that * they might buy some future book that I write (or they might pirate it, which is almost as good as buying it)

Sure, none of those choices are quite as good as actually buying the book. But they are infinitely better than not buying it and not pirating it. At least I've got some hope of getting revenue out of a pirate.

It seems to me that you missed a fourth category of people:

* somebody who would have bought your product, but pirated it because they could get it for free

Yes, this person might translate to another sale. Maybe several. But the fact is that they'd still have translated to those sales if they bought the book. So you're still losing the sale to them.

The question is how many of these people there are vs. how many pirated your work yet wouldn't have bought it.

abhi_beckert wrote:

krimhorn wrote:

The really sad thing is that the authors who "suffer" the most from "piracy" wouldn't even notice the difference in their checks if all the "pirates" were purchasers. Not that I'm trying to justify the act; it's just that the loudest voices against "piracy" seem to be the people who are hurt the least by it.

Generally the authors do not suffer directly from piracy. It is the publishers who suffer from piracy. They are investing large sums of money in a wide variety of books, most of which end up being money thrown down the toilet.

For book/music/movie publishers, a customer who doesn't buy a book is likely to spend money on some other book, and chances are they make money off that book too.

And what's bad for the publishers is (in the long run) bad for authors, because it means less authors are able to get a nice fat cheque to cover their living expenses while they write a book.

I've never understood the vitrol against publishers, where people talk about them like they're some kind of parasite preventing "real artists" from emerging.

Publishers provide a vital service, which varies from medium to medium. But in all cases, publishers do something very important: they allow artists to be artists. They remove non-artistic concerns from artists like distribution, advertising, and other things that take away from the ability to be artists. They allow artists to be professional artists, not part-time artists, part-time publicists, etc.

They allow artists to specialize and focus on doing what they do.

Movie publishers provide vital funding to cover the enormous up-front costs of film-making, as well as dealing with a myriad of complex distribution issues (localization, world-wide international releases, etc), smooth out the labyrinthine production process, and so forth. Book publishers provide vital editorial and gate-keeping services, keeping the book world from becoming Fanfiction.net. Music publishers probably provide the fewest services to their artists, but even they provide for useful things like sound engineers, professional recording studios, etc.

Specialization is the key to most of the advances of civilization. Specialization is what allows professionals of any kind to exist; it's why we don't spend 75% of our time farming or hunting for food.

Why do people cheer the lost of the system that allows artists to specialize in their field?

Wonder how much Big Search paid the judge? Isnt that the format of the argument? This is ruling is ridiculous if google wants a digital scan or for that matter if the libraries want a digital scan they can go to the copy write owner and work out a deal (read pay or get their permission). If the work is orphaned too bad if you want it enough track down the copy write owner.

Because the public have rights, tomorrow's schoolchildren have rights, and tomorrow's scholars have rights. Today's copyright holders have a license, and every license has limits. Copyright holders do not have rights, any more than I have "rights" to hunt deer, fish, or drive a car.

His premise is simple: Until you have the sales of Grisham, Rowling, or King, your worst problem as an author is never getting stolen from, it's getting potential reads to hear about your book and read a few chapters.

If I follow correctly you're saying that for relative unknown authors the worst thing is not getting "pirated" (hate that term) because that's introducing new readers (and potential purchasers) to your works? I'd agree with that in part. Only in part because in order for that reader to become a purchaser of your books you'd have to get past the psychological demotivation to purchase something you already have access to. The purchased version generally has to provide additional benefits for the "pirate" to be willing to transform the copy they have already obtained into a legal, paid copy. I know of no research to back this up, but I would be willing to bet that a system as simple as a tip or donation to the author might just provide enough of a different perspective on what they're doing (i.e. instead of "paying" for something they already have access to they're "supporting" the author) to get some of them to do it.

The really sad thing is that the authors who "suffer" the most from "piracy" wouldn't even notice the difference in their checks if all the "pirates" were purchasers. Not that I'm trying to justify the act; it's just that the loudest voices against "piracy" seem to be the people who are hurt the least by it.

Eric Flint argues that most people are honest, and (if they can afford a book) will buy the book even when they know they can get it for free. They LIKE having a clear conscience, which ultimately is what they're paying for. There is a limit to that honesty, however, in that many people will not willingly pay for an eBook if they think it's overpriced. This is why Baen Books doesn't charge more than six dollars for its eBooks, and why I don't charge more than six dollars for mine.

Studies right here at ArsTechnica have shown that piracy flourishes not because there are thousands and thousands of computer-knowledgeable sociopaths around the world, but because the market is out of whack. But the myth of hordes of "pirates" persists because Big News gives lots of airtime to spokesmen for Big Content.

His premise is simple: Until you have the sales of Grisham, Rowling, or King, your worst problem as an author is never getting stolen from, it's getting potential reads to hear about your book and read a few chapters.

If I follow correctly you're saying that for relative unknown authors the worst thing is not getting "pirated" (hate that term) because that's introducing new readers (and potential purchasers) to your works? I'd agree with that in part. Only in part because in order for that reader to become a purchaser of your books you'd have to get past the psychological demotivation to purchase something you already have access to. The purchased version generally has to provide additional benefits for the "pirate" to be willing to transform the copy they have already obtained into a legal, paid copy. I know of no research to back this up, but I would be willing to bet that a system as simple as a tip or donation to the author might just provide enough of a different perspective on what they're doing (i.e. instead of "paying" for something they already have access to they're "supporting" the author) to get some of them to do it.

As a software developer, I understand exactly what he's talking about. Generally there are three possibilities:

Of those three choices the first two are almost infinitely better than the third choice. Obviously it's great when someone sends me money, but I'm also OK with them pirating it because that has several possible sources of revenue:

* they might tell someone else they like it, and that person buys it * they might love it so much they buy it to support the author * they might want it in another format (ebook, audio book, hardcover, etc) and may buy that * they might buy some future book that I write (or they might pirate it, which is almost as good as buying it)

Sure, none of those choices are quite as good as actually buying the book. But they are infinitely better than not buying it and not pirating it. At least I've got some hope of getting revenue out of a pirate.

krimhorn wrote:

The really sad thing is that the authors who "suffer" the most from "piracy" wouldn't even notice the difference in their checks if all the "pirates" were purchasers. Not that I'm trying to justify the act; it's just that the loudest voices against "piracy" seem to be the people who are hurt the least by it.

Generally the authors do not suffer directly from piracy. It is the publishers who suffer from piracy. They are investing large sums of money in a wide variety of books, most of which end up being money thrown down the toilet.

For book/music/movie publishers, a customer who doesn't buy a book is likely to spend money on some other book, and chances are they make money off that book too.

And what's bad for the publishers is (in the long run) bad for authors, because it means less authors are able to get a nice fat cheque to cover their living expenses while they write a book.

I was with you 100 percent till that last paragraph. What's bad for big publishers is what's bad for big publishers, buggy-whip manufacturers, and the headmasters of phrenology schools. Big publishers are a convenience for authors, no longer a necessity; and the author who signs with a big publisher pays for the convenience he gets.

His premise is simple: Until you have the sales of Grisham, Rowling, or King, your worst problem as an author is never getting stolen from, it's getting potential reads to hear about your book and read a few chapters.

If I follow correctly you're saying that for relative unknown authors the worst thing is not getting "pirated" (hate that term) because that's introducing new readers (and potential purchasers) to your works? I'd agree with that in part. Only in part because in order for that reader to become a purchaser of your books you'd have to get past the psychological demotivation to purchase something you already have access to. The purchased version generally has to provide additional benefits for the "pirate" to be willing to transform the copy they have already obtained into a legal, paid copy. I know of no research to back this up, but I would be willing to bet that a system as simple as a tip or donation to the author might just provide enough of a different perspective on what they're doing (i.e. instead of "paying" for something they already have access to they're "supporting" the author) to get some of them to do it.

As a software developer, I understand exactly what he's talking about. Generally there are three possibilities:

Of those three choices the first two are almost infinitely better than the third choice. Obviously it's great when someone sends me money, but I'm also OK with them pirating it because that has several possible sources of revenue:

* they might tell someone else they like it, and that person buys it * they might love it so much they buy it to support the author * they might want it in another format (ebook, audio book, hardcover, etc) and may buy that * they might buy some future book that I write (or they might pirate it, which is almost as good as buying it)

Sure, none of those choices are quite as good as actually buying the book. But they are infinitely better than not buying it and not pirating it. At least I've got some hope of getting revenue out of a pirate.

It seems to me that you missed a fourth category of people:

* somebody who would have bought your product, but pirated it because they could get it for free

Yes, this person might translate to another sale. Maybe several. But the fact is that they'd still have translated to those sales if they bought the book. So you're still losing the sale to them.

The question is how many of these people there are vs. how many pirated your work yet wouldn't have bought it.

abhi_beckert wrote:

krimhorn wrote:

The really sad thing is that the authors who "suffer" the most from "piracy" wouldn't even notice the difference in their checks if all the "pirates" were purchasers. Not that I'm trying to justify the act; it's just that the loudest voices against "piracy" seem to be the people who are hurt the least by it.

Generally the authors do not suffer directly from piracy. It is the publishers who suffer from piracy. They are investing large sums of money in a wide variety of books, most of which end up being money thrown down the toilet.

For book/music/movie publishers, a customer who doesn't buy a book is likely to spend money on some other book, and chances are they make money off that book too.

And what's bad for the publishers is (in the long run) bad for authors, because it means less authors are able to get a nice fat cheque to cover their living expenses while they write a book.

I've never understood the vitrol against publishers, where people talk about them like they're some kind of parasite preventing "real artists" from emerging.

Publishers provide a vital service, which varies from medium to medium. But in all cases, publishers do something very important: they allow artists to be artists. They remove non-artistic concerns from artists like distribution, advertising, and other things that take away from the ability to be artists. They allow artists to be professional artists, not part-time artists, part-time publicists, etc.

They allow artists to specialize and focus on doing what they do.

Movie publishers provide vital funding to cover the enormous up-front costs of film-making, as well as dealing with a myriad of complex distribution issues (localization, world-wide international releases, etc), smooth out the labyrinthine production process, and so forth. Book publishers provide vital editorial and gate-keeping services, keeping the book world from becoming Fanfiction.net. Music publishers probably provide the fewest services to their artists, but even they provide for useful things like sound engineers, professional recording studios, etc.

Specialization is the key to most of the advances of civilization. Specialization is what allows professionals of any kind to exist; it's why we don't spend 75% of our time farming or hunting for food.

Why do people cheer the lost of the system that allows artists to specialize in their field?

By your logic, Amazon should have gone bust years ago. "Why would people buy when they can steal?"

Pimps provide bodyguard services for their whores, and slaveowners provide food, clothing, and shelter for their slaves. Similarly, movie studios, music labels, and publishing houses provide services for their respective creatives. Be assured that Big Content's services are provided as generously and cheaply as those of the pimps and slaveowners.

* somebody who would have bought your product, but pirated it because they could get it for free

Yes, this person might translate to another sale. Maybe several. But the fact is that they'd still have translated to those sales if they bought the book. So you're still losing the sale to them.

The question is how many of these people there are vs. how many pirated your work yet wouldn't have bought it.

I don't worry about pirates at all, except to try to prevent someone pirating my book because he wanted to buy it but I angered him somehow.

"Lost sales" are Big Content propaganda. Lost sales only matter in the case of shoplifted dead-tree books, not for pirated eBooks. Why? Because a pirated eBook DOESN'T COST ME ANYTHING. If I'm going to yell that "something needs to be done to prevent lost sales," then not only should I demand that unpermitted downloading be made illegal, but also that anyone who loans a book to a friend, borrows a book from a friend, or checks out a book from a library, all should be Gitmo'd. The only difference is that those other activities are all socially acceptable, while "piracy" makes Joe Biden cry.

Articles right here on ArsTechnica have shown that people who do unpermitted downloading of music don't buy less music, they buy more. What often happens is that they download a lot of songs, then (officially) buy the songs they already know they like. And the other songs they downloaded? Vaporized. But Big Content's narrative is that every unpermitted music-downloader is a sociopath who gets the songs for free even if he's just won the lottery, and then keeps the songs; I don't share that view of "pirates."

* somebody who would have bought your product, but pirated it because they could get it for free

Yes, this person might translate to another sale. Maybe several. But the fact is that they'd still have translated to those sales if they bought the book. So you're still losing the sale to them.

The question is how many of these people there are vs. how many pirated your work yet wouldn't have bought it.

I didn't forget them. I specifically included them in the category of people who pirated my product, and I mentioned all of the positive things that can happen when someone pirates it.

You're right, the question is how many pirate your work vs buy it. The answer is simple: don't write a book unless people will buy it. And if nobody will buy your book, then who gives a **** about it anyway. The world would be better if those authors did something productive, like cleaning toilets.

Alfonse wrote:

abhi_beckert wrote:

krimhorn wrote:

The really sad thing is that the authors who "suffer" the most from "piracy" wouldn't even notice the difference in their checks if all the "pirates" were purchasers. Not that I'm trying to justify the act; it's just that the loudest voices against "piracy" seem to be the people who are hurt the least by it.

Generally the authors do not suffer directly from piracy. It is the publishers who suffer from piracy. They are investing large sums of money in a wide variety of books, most of which end up being money thrown down the toilet.

For book/music/movie publishers, a customer who doesn't buy a book is likely to spend money on some other book, and chances are they make money off that book too.

And what's bad for the publishers is (in the long run) bad for authors, because it means less authors are able to get a nice fat cheque to cover their living expenses while they write a book.

I've never understood the vitrol against publishers, where people talk about them like they're some kind of parasite preventing "real artists" from emerging.

I never said anything bad about publishers. I pointed out that piracy hurts publishers, and whatever hurts publishers will indirectly hurt authors (indirectly because it takes a few years to filter down).

Alfonse wrote:

Publishers provide a vital service, which varies from medium to medium. But in all cases, publishers do something very important: they allow artists to be artists.

I would rephrase that to say publishers provide an extremely valuable service. It is not vital, and I have no doubt authors/musicians/filmmakers could find other funding sources (kickstarter is one attempt to create one - time will tell how that pans out).

Alfonse wrote:

Movie publishers provide vital funding to cover the enormous up-front costs of film-making, as well as dealing with a myriad of complex distribution issues (localization, world-wide international releases, etc), smooth out the labyrinthine production process, and so forth.

In my industry, software development, venture capitalists provide funding for enormous up-front costs (look at twitter, billions in expenses and still no viable revenue source), and Apple/Google/Amazon/Microsoft provide app distribution to handle almost all the distribution headaches. They are all moving into book distribution as well.

Publishers are great, but if they were to vanish I'm confidant a bunch of perfectly good alternatives would pop up.

It makes me feel sick whenever I vote for any politician who supports changing the law to protect publishers (sadly I've done it a few times, thanks to a lack of good voting choices).

By your logic, Amazon should have gone bust years ago. "Why would people buy when they can steal?"

Pimps provide bodyguard services for their whores, and slaveowners provide food, clothing, and shelter for their slaves. Similarly, movie studios, music labels, and publishing houses provide services for their respective creatives. Be assured that Big Content's services are provided as generously and cheaply as those of the pimps and slaveowners.

Hyperbole and strawmen don't count as arguments. Nice try, but if you want to counter my points, you have to actually do that rather than resort to childish namecalling and passive-aggressive inferences.

TomTheAlmostUgly wrote:

I don't worry about pirates at all, except to try to prevent someone pirating my book because he wanted to buy it but I angered him somehow.

"Lost sales" are Big Content propaganda. Lost sales only matter in the case of shoplifted dead-tree books, not for pirated eBooks. Why? Because a pirated eBook DOESN'T COST ME ANYTHING.

How not? It's really quite simple.

If someone was willing to pay $20 for something, but instead got it for free elsewhere, you didn't get $20 from them. That cost you the $20 that you would have gotten if they didn't have the ability to get it for free.

Which, I remind you, is against the law.

This notion that, just because there's no physical matter associated with something that it's valueless is pretty much the clarion call of the pirate. They're not really taking something, it isn't depriving the person of any physical material, so obviously it isn't worth something.

If it's not worth something, then why is there a fair market price attached to it? Obviously someone thinks its worth something. Most importantly, if it's not worth something... why do they want it so badly?

TomTheAlmostUgly wrote:

Articles right here on ArsTechnica have shown that people who do unpermitted downloading of music don't buy less music, they buy more. What often happens is that they download a lot of songs, then (officially) buy the songs they already know they like. And the other songs they downloaded? Vaporized. But Big Content's narrative is that every unpermitted music-downloader is a sociopath who gets the songs for free even if he's just won the lottery, and then keeps the songs; I don't share that view of "pirates."

Ah yes, "articles right here on ArsTechnica." Because ArsTech is a perfect bastion of unbiased reporting on copyright issues, right? Because ArsTech doesn't have their own perspective and biases, right?

I trust ArsTech's reporting on copyright issues about as far as I can throw them.

Also, not paying for something you can get for free doesn't require being a sociopath; it just requires being a dick to people you don't know. And given human nature over our long history on this planet, it's pretty clear that being a dick to people you don't know is practically hard-wired into our genes.

Reciprocity works most strongly with people you know, and diminishes with distance. And the Internet is a great tool for being able to distance yourself from people and the consequences of your actions.

abhi_beckert wrote:

Alfonse wrote:

It seems to me that you missed a fourth category of people:

* somebody who would have bought your product, but pirated it because they could get it for free

Yes, this person might translate to another sale. Maybe several. But the fact is that they'd still have translated to those sales if they bought the book. So you're still losing the sale to them.

The question is how many of these people there are vs. how many pirated your work yet wouldn't have bought it.

I didn't forget them. I specifically included them in the category of people who pirated my product, and I mentioned all of the positive things that can happen when someone pirates it.

You're right, the question is how many pirate your work vs buy it. The answer is simple: don't write a book unless people will buy it. And if nobody will buy your book, then who gives a **** about it anyway. The world would be better if those authors did something productive, like cleaning toilets.

That's a rather simplistic argument: if you make bad art, you shouldn't have made it at all.

Every great author sucked at one time in the past. Hell, most great authors got noticeably better during their careers as published authors. You're basically saying that anyone who isn't good yet shouldn't be able to get better.

That's not a sustainable system. There needs to be some way for people who aren't great yet to get on board and cut their teeth.

abhi_beckert wrote:

Alfonse wrote:

Generally the authors do not suffer directly from piracy. It is the publishers who suffer from piracy. They are investing large sums of money in a wide variety of books, most of which end up being money thrown down the toilet.

For book/music/movie publishers, a customer who doesn't buy a book is likely to spend money on some other book, and chances are they make money off that book too.

And what's bad for the publishers is (in the long run) bad for authors, because it means less authors are able to get a nice fat cheque to cover their living expenses while they write a book.

I've never understood the vitrol against publishers, where people talk about them like they're some kind of parasite preventing "real artists" from emerging.

I never said anything bad about publishers. I pointed out that piracy hurts publishers, and whatever hurts publishers will indirectly hurt authors (indirectly because it takes a few years to filter down).[/quote]

I know. I was agreeing with you.

abhi_beckert wrote:

Alfonse wrote:

Movie publishers provide vital funding to cover the enormous up-front costs of film-making, as well as dealing with a myriad of complex distribution issues (localization, world-wide international releases, etc), smooth out the labyrinthine production process, and so forth.

In my industry, software development, venture capitalists provide funding for enormous up-front costs (look at twitter, billions in expenses and still no viable revenue source), and Apple/Google/Amazon/Microsoft provide app distribution to handle almost all the distribution headaches. They are all moving into book distribution as well.

Publishers are great, but if they were to vanish I'm confidant a bunch of perfectly good alternatives would pop up.

Alternatives would exist; "perfectly good" is to be determined.

Somehow, I doubt Apple is going to hire a full-time staff of editors. I rather doubt Google gives a damn about the quality of the schlock that goes on their books website so long as it gets them more ad hits. Hell, they'll probably believe that searches work as a culling mechanism. And we already know Amazon will accept anything that's formatted correctly, content be damned.

That's not "perfectly good". This means that authors will have to either hire editors and publicists themselves (costing money that many new authors don't have), or put out badly edited, poorly advertised books.

Such a system favors those who've made it over those who haven't. The publisher model at least offers some reward for publishers to find the next great author, to take a chance on a random guy who walks in the door.

I've never understood the vitrol against publishers, where people talk about them like they're some kind of parasite preventing "real artists" from emerging.

Publishers provide a vital service, which varies from medium to medium. But in all cases, publishers do something very important: they allow artists to be artists. They remove non-artistic concerns from artists like distribution, advertising, and other things that take away from the ability to be artists. They allow artists to be professional artists, not part-time artists, part-time publicists, etc.

The vitriol comes from the fact that this service (which is not really vital, it's just convenient) comes at a terrible price. I don' mean merely money (although they take that too), but the fact that artists who rely on publishers can only make the kind of art that the publisher believes will maximize their profits. It was not always this way and there are still some exceptions, but the lion's share of modern publishing is done by massive, transnational corporations which care far less about the art than they do about money. They control the largest distribution channels and flood various media with marketing in an effort to make large profits on a small number of works of art. There isn't anything good about this for most artists -- only a lucky few benefit.

Am I correct in my understanding that this ruling didn't address orphaned works? I would be surprised if it did, since a change in copyright law seems necessary for google's aspirations in that area.

edit: I'm reading this and realize it could be misunderstood. What I means was that I'm reading this case as not addressing the question of selling (or otherwise making available to the public) orphaned works as google wants to do. That's the thing that I believe requires a change in copyright law and no settlement can decide.

If someone was willing to pay $20 for something, but instead got it for free elsewhere, you didn't get $20 from them. That cost you the $20 that you would have gotten if they didn't have the ability to get it for free.

Which, I remind you, is against the law.

This notion that, just because there's no physical matter associated with something that it's valueless is pretty much the clarion call of the pirate. They're not really taking something, it isn't depriving the person of any physical material, so obviously it isn't worth something.

If it's not worth something, then why is there a fair market price attached to it? Obviously someone thinks its worth something. Most importantly, if it's not worth something... why do they want it so badly?

It is a relic of an outdated economic model that IP still has any value at all. I would not bet too strongly on a system that relies on artificial scarcity where the rights-holders do not control the means of reproduction. Forget about any moral argument for or against piracy, just think in terms of the economics. Like it or not we all have perfect little copy machines in our homes and in our pockets. They cannot even look at something without making a copy of it, it is inherent in their design.

Eric Flint argues that most people are honest, and (if they can afford a book) will buy the book even when they know they can get it for free. They LIKE having a clear conscience, which ultimately is what they're paying for. There is a limit to that honesty, however, in that many people will not willingly pay for an eBook if they think it's overpriced. This is why Baen Books doesn't charge more than six dollars for its eBooks, and why I don't charge more than six dollars for mine.

Studies right here at ArsTechnica have shown that piracy flourishes not because there are thousands and thousands of computer-knowledgeable sociopaths around the world, but because the market is out of whack. But the myth of hordes of "pirates" persists because Big News gives lots of airtime to spokesmen for Big Content.

I spend a pretty preposterous amount of money per year on books (in the neighborhood of $1000). I like books. I like reading. I have a job where I get to do a lot of reading and I like that. I go home and do a lot of reading and I like that. I simply will never even approach having read everything that is out there and I am introduced to a new author roughly once a month. I'm also an author.

I believe the Author's Guild has not actually spoken for authors as a group in a long time. It's not an anachronism, per se, but it has forgotten its purpose or the people it purports to represent have grown past the need for it.

I approve of the Constitutional protection of intellectual property. I strongly disapprove of Congress having altered it from the original model, whatever their goals (good or ill).

I do not pay for cable television (a decision I first made when I first got into uniform and one that I have not regretted since). Most of the media I do own was given to me as gifts (and I own a fair amount). I don't pay for Netflix for myself (I pay for an account my parents enjoy and I occasionally bogart to stream something). I go to the movies infrequently; if you want me to pay $13 to see a movie, you need to justify the expense by giving me an experience I cannot replicate on my couch.

I buy books. I buy a lot of books. Lawsuits like this -- designed to protect a dying business model -- make me question whether I ought to. I've written the Authors' Guild explaining this and asking for them to drop the suit. I received a form letter response(!), exemplary of exactly how far they have fallen as an organization. I now have to hope that this foolishness destroys them.

Google is doing more good than harm to humanity by providing book scans more accessible to the general public.

I lost count on my many times it had help my research progress by allowing me to search for keywords in a medium otherwise would take hours to do, in merely seconds in front of my PC and without the need to go to acquire the book, which may or may not be available in the library.

It is not like you can read the whole book for free, as Google book randomly hides pages in between. If I need to acquire to the book for more detailed reference, then it is good for the publisher.

Books are expensive, by allowing me to preview the table of contents and several pages from each chapters, I can also make better purchase decisions.

It is a relic of an outdated economic model that IP still has any value at all.

The modern day mantra chanted over and over with nary a foundation to it. The notion of the exchange of one thing for another is as old as civilization and the other notion that one person should benefit at the expense of another is likewise as old. Technology changes neither foundation, just facilitates a greater ease. Patron of the arts and robber of intent alike.

It is a relic of an outdated economic model that IP still has any value at all.

The modern day mantra chanted over and over with nary a foundation to it. The notion of the exchange of one thing for another is as old as civilization and the other notion that one person should benefit at the expense of another is likewise as old. Technology changes neither foundation, just facilitates a greater ease. Patron of the arts and robber of intent alike.

Do you have a lot of examples of copies of ideas, thoughts and creativity being sold as commodities before Gutenberg? I think we would all be curious to see how this business model is "as old as civilization"

It is a relic of an outdated economic model that IP still has any value at all.

The modern day mantra chanted over and over with nary a foundation to it. The notion of the exchange of one thing for another is as old as civilization and the other notion that one person should benefit at the expense of another is likewise as old. Technology changes neither foundation, just facilitates a greater ease. Patron of the arts and robber of intent alike.

Do you have a lot of examples of copies of ideas, thoughts and creativity being sold as commodities before Gutenberg? I think we would all be curious to see how this business model is "as old as civilization"

Commodity status doesn't make IP valuless. As for my reference of "old as civilization" it's called commerce.

Commodity status doesn't make IP valuless. As for my reference of "old as civilization" it's called commerce.

I was speaking of the particular business model of commoditizing IP, which is a very small subset of commerce throughout history and I would argue, not very old.

When I spoke about IP being without value, I was speaking in the financial sense. For a short period of time IP was limited by the means of reproduction and therefore scare. It was this scarcity that gave it value and allowed it to be commoditized. This scarcity no longer exists so the value of IP can no longer be reliably be measured in financial terms but only in usefulness and enjoyment.

Commodity status doesn't make IP valuless. As for my reference of "old as civilization" it's called commerce.

I was speaking of the particular business model of commoditizing IP, which is a very small subset of commerce throughout history and I would argue, not very old.

When I spoke about IP being without value, I was speaking in the financial sense. For a short period of time IP was limited by the means of reproduction and therefore scare. It was this scarcity that gave it value and allowed it to be commoditized. This scarcity no longer exists so the value of IP can no longer be reliably be measured in financial terms but only in usefulness and enjoyment.

If it no longer has value as you say, why in the world would anyone pursue it as a profession then? Since food, housing etc require real money. Not just a "maybe I'll pay if I like it."

I've never understood the vitrol against publishers, where people talk about them like they're some kind of parasite preventing "real artists" from emerging.

Publishers provide a vital service, which varies from medium to medium. But in all cases, publishers do something very important: they allow artists to be artists. They remove non-artistic concerns from artists like distribution, advertising, and other things that take away from the ability to be artists. They allow artists to be professional artists, not part-time artists, part-time publicists, etc.

They allow artists to specialize and focus on doing what they do.

Movie publishers provide vital funding to cover the enormous up-front costs of film-making, as well as dealing with a myriad of complex distribution issues (localization, world-wide international releases, etc), smooth out the labyrinthine production process, and so forth. Book publishers provide vital editorial and gate-keeping services, keeping the book world from becoming Fanfiction.net. Music publishers probably provide the fewest services to their artists, but even they provide for useful things like sound engineers, professional recording studios, etc.

Specialization is the key to most of the advances of civilization. Specialization is what allows professionals of any kind to exist; it's why we don't spend 75% of our time farming or hunting for food.

Why do people cheer the lost of the system that allows artists to specialize in their field?

I can't speak for others here but, at least for me personally, I have no problem whatsoever with the idea of a publisher ie: a group that supports content producers (of any industry) financially, and handles all the related aspects to releasing a work to the public (advertising/marketing, editing, packaging, distribution, etc...)

The *Big Problem* is that the internet has flipped a number of services a publisher would traditionally provide on their head - of the list above, only editing is largely unaffected. For the rest, *dramatic* efficiency improvements can be had by selling the product digitally, yet the publishing companies currently around are hulking monstrosities built for an era when it was a whole lot more expensive to get something into a consumer's hands.

They have thousands of employees doing all sorts of jobs that, in a purely digital distribution model, wouldn't exist at all or would be hugely scaled back - they have made no effort to adapt their businesses to the changing conditions, and instead persist in whinging about how pirates are destroying their (now largely wasteful and unnecessary) "industry" and try and get all sorts of supralegal protections to keep their business model afloat - all because they're unwilling to change their businesses to match modern-day markets and efficiencies.

A "modern day" publisher (if a new leader arose or an older one took the dramatic step of cutting its cruft out to get there) could fire pretty much its entire distribution department. It could fire its physical manufacturers, and wouldn't have to touch a factory at all. They could streamline marketing to focus on online advertising targeted to your demographics of interest, word of mouth, social and other efficient methods. It would save millions not having to physically create, ship and store paper books around the world, and the books wouldn't eat up more cost taking up space on a shelf somewhere in a bookstore.

What would all this translate to? A publisher could still be as profitable and still provide the same amount of support and kickback to the content creator *while significantly reducing the price a consumer pays for the media*, making consumers far more likely to buy their product. They sell more copies, piracy goes down, consumers are happier and get to enjoy more media for their dollar. PROBLEM. SOLVED. The only losers? The publishers who didn't adapt.

From the looks of it though, the established publishing companies (and this applies to books, music, movies and games equally) are unwilling to take the big leap to adapt this way; it's much "safer" in their minds to try and prop up their model with a pile of regulations that just make the efficiencies of their current business even worse. It'll take a bunch of them going under and new leaner replacements coming up to really fix the problem at the root.

Timothy B. Lee / Timothy covers tech policy for Ars, with a particular focus on patent and copyright law, privacy, free speech, and open government. His writing has appeared in Slate, Reason, Wired, and the New York Times.